Custody and the Domestic Violence Presumption

After a long custody battle between the parties, R&B singer Usher was recently granted primary physical custody of the two sons he shares with his ex-wife, Tameka Raymond. The Fulton County Superior Court made this order after receiving evidence that Tameka spit at and tried to start a fight with Usher’s girlfriend and hit him during the dispute. This is the same type of conduct that can result in the Court making a finding of domestic violence. A finding of domestic violence can often lead to an award of sole custody.

When the Court makes a custody award, public policy generally requires frequent and continuous contact with both parents, except when such contact would not be in the best interest of the child. When determining whether contact with a certain parent is in the best interest of the child the Court must consider any abuse by one parent against (1) the child; (2) the other parent, (3) a parent, current spouse, or cohabitant of the parent or other person, or a person with whom the parent or other person has a dating relationship. If the Court finds that there has been abuse by one parent toward any of the above, the Court may deny custody to the parent perpetrating the abuse.

The Court may require independent corroboration of the abuse allegation, such as written reports from law enforcement agencies, courts, or medical facilities pursuant to Family Code section 3011(b). When the Court makes a finding at a custody hearing that a parent has perpetrated domestic violence on the other parent (or the child or child’s siblings) within the last 5 years, it raises a rebuttable presumption that awarding sole or joint or legal custody of the child to the perpetrator parent is not in the child’s best interests. Family Code section 3044(a).

In making this determination the Court considers a number of factors regarding the child’s best interest and whether the parent has participated in programs, complied with orders, or committed other acts of DV. The public policy interest stated above regarding frequent and continuous contact with both parents cannot be used to rebut this presumption. However, even though a rebuttable presumption is established, the court must still determine the best interest of the child based on all the circumstances.

Family Code Section 3044(a) will likely also play a part in the recently filed dissolution of Beverly Hills Housewife, Adrienne Maloof and her husband Paul Nassif. The Bravo reality star recently filed a request for a restraining order claiming that her husband was physically violent toward one of the couple’s sons, including allegations of spanking and choking. Adrienne’s request for a temporary restraining order was granted and pending the hearing, Adrienne has been awarded temporary sole custody of the parties’ three sons. If the court were to make a finding of domestic violence it could have a long term effect on the couple’s legal and physical custody arrangement.

At Mello & Pickering, LLP, we handle domestic violence cases as well as custody and visitation issues of all types. Whether you have questions about your rights with regard to custody and visitation or are concerned for your child’s welfare due to the other parents’ actions, give us a call to set up a consultation or an in person meeting at (408) 288–7800.

1Family Code Section 3044(c): “For purposes of this section, a person has “perpetrated domestic violence” when he or she is found by the court to have intentionally or recklessly caused or attempted to cause bodily injury, or sexual assault, or to have placed a person in reasonable apprehension of imminent serious bodily injury to that person or to another, or to have engaged in any behavior involving, but not limited to, threatening, striking, harassing, destroying personal property or disturbing the peace of another, for which a court may issue an ex parte order pursuant to Section 6320 to protect the other party seeking custody of the child or to protect the child and the child’s siblings.”

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